Ryan v. Old Veteran Mining Co.

• Decision Date: 10 July 1922
• Citation: 35 Idaho 637,207 P. 1076
• Parties: THOMAS RYAN, Appellant, v. OLD VETERAN MINING COMPANY, a Corporation, F. H. HARPER, and the Following Named Persons Individually and as Directors and Officers of Said Defendant Corporation, Namely, M. J. FARRELL, ALLAN G. KENNEDY, ED EHRENBERG, B. J. FARRELL, and L. L. BRAIN ARD, Respondents
• Court: Idaho Supreme Court

207 P. 1076

35 Idaho 637

THOMAS RYAN, Appellant, v. OLD VETERAN MINING COMPANY, a Corporation, F. H. HARPER, and the Following Named Persons Individually and as Directors and Officers of Said Defendant Corporation, Namely, M. J. FARRELL, ALLAN G. KENNEDY, ED EHRENBERG, B. J. FARRELL, and L. L. BRAIN ARD, Respondents

Supreme Court of Idaho

July 10, 1922

APPEAL - MOTION TO DISMISS - MOTION TO STRIKE TRANSCRIPT - AMENDED PLEADING-ORIGINAL PLEADING-PROOF OF FILING DATE OF.

1. When an amended pleading has been filed, and no question is raised as to the original, the latter must not be put in the transcript.

2. The filing date of the original pleading is properly made part of the transcript, when that date is rendered material, by the fact that the adverse party pleads that the action is barred by the statute of limitations.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Motion to dismiss appeal, strike transcript and part of transcript. Denied.

Motions to dismiss the appeal and to strike denied.

Isham N. Smith, and Therrett Towles, for Appellant.

The third amended complaint in this case superseded the original complaint and subsequent amended complaint filed prior to the filing of said amended complaint; it dated back to the time of the filing of the original complaint; and all prior complaints to the third amended complaint ceased to perform any further function after the filing of the third amended complaint, and the pleadings prior to the filing of the third amended complaint were therefore no part of the judgment-roll in this case and no part of the transcript on appeal. (People v. Hunt, 1 Idaho 433; Wooddy v Jamieson, 4 Idaho 448, 40 P. 61; Warren v Stoddard, 6 Idaho 692, 59 P. 540; Andrews v Moore, 14 Idaho 465, 94 P. 579; Armstrong v. Henderson, 16 Idaho 566, 102 P. 361; McFadden v. Ellsworth etc. Min. Co., 8 Nev. 57; Barber v. Reynolds, 33 Cal. 497.)

C. W. Beale, for Respondents.

The transcript on appeal does not contain all of the judgment-roll made and entered in the lower court upon the dismissal of this case. The language, "Original complaint filed Sep. 30, 1919 at 12:15 P. M.," is no part of the judgment-roll and was improperly and without authority of law or the rules of this court incorporated into the transcript on appeal. (C. S., secs. 6901, 6683, 6833, 7166, subd. 1; S.Ct. Rule 32; Coon v. Sommercamp, 26 Idaho 776, 787, 146 P. 728.)

MCCARTHY, J. Rice, C. J., and Dunn and Lee, JJ., concur.

OPINION

MCCARTHY, J.

This is an appeal from a judgment of dismissal rendered after the court had sustained a demurrer to the third amended complaint. One of the grounds of demurrer was that the action was barred by the statute of limitations. The transcript contains the third amended complaint, but not the original. It contains the date of filing the original complaint, to wit: September 30, 1919. Respondents move to dismiss the appeal, to strike the transcript, and strike the date of filing the original complaint on the ground that the transcript does not contain a copy of the entire judgment-roll, and that said filing date is not a proper part of the judgment-roll or of the record on appeal.

When an amended complaint is filed, it takes the place of the original, and all subsequent proceedings in the case are based upon the amended pleading. (People v. Hunt, 1 Idaho 433; Warren v. Stoddart, 6 Idaho 692, at 701 59 P. 540; Armstrong v....